Senate passes defense bill with indefinite detention provision

WASHINGTON (Reuters) – The Senate voted on Thursday to broaden the armed forces’ powers over suspected militants, requiring that foreigners allied with al Qaeda be held in military custody even if they are captured in the United States.

The White House has threatened to veto the provisions. Members of President Barack Obama’s national security team argued that U.S. officials should keep the option of prosecuting suspected militants in civilian as well as military courts — and deciding this case by case.

The Senate voted for the terror suspect provisions as part of a huge defense bill that was passed by a vote of 93-7. It authorized $662 billion for the armed forces and the wars in Iraq and Afghanistan in fiscal 2012.

That is $27 billion less than what Obama requested and $43 billion less than the amount Congress approved for the same purposes a year earlier, reflecting the new emphasis on budget-cutting to rein in the national debt.

The legislation also allows the government to keep terrorism suspects in military custody indefinitely, without trial. It must still be melded with a House of Representatives version, which contains similar provisions on detainees, before being sent to Obama for his approval or veto.

It was the latest battle in a long struggle between Obama, a Democrat, and some lawmakers over whether terror suspects should be prosecuted as “enemy combatants” before military commissions, or as criminal suspects in U.S. federal courts.

Republicans and some Democrats have urged that only military courts be used, and Congress repeatedly has voted to limit transfers of detainees from the U.S. military prison at Guantanamo Bay, Cuba, to the United States.

IMPACT ON U.S. CITIZENS

American citizens are exempted from the mandatory military detention requirement. The legislation also has waivers allowing officials to place a prisoner in the U.S. criminal court system if it is in the interest of national security, but FBI chief Robert Mueller and others have argued that the waiver procedure is too awkward.

Amid concerns the provisions might impinge on the constitutional rights of U.S. citizens in military custody, the Senate passed an amendment saying nothing in the provisions could be construed to alter Americans’ legal rights.

Some analysts said that fudged the issue.

“(It) doesn’t clear up the confusion around who the provisions cover — which is really a reminder of why military and law enforcement officials, as well as past interrogators, are against the provisions in the first place,” said Heather Hurlburt, executive director of the non-profit National Security Network.

Senator Dianne Feinstein, a Democrat from California, sought unsuccessfully on Thursday to limit the military custody requirement to suspects captured outside the United States. The Senate voted her proposal down, 55-45.

Feinstein, who chairs the Senate Intelligence Committee, argued that ordinary criminal courts had produced lengthy sentences for convicted terror suspects such as convicted shoebomber Richard Reid, who received a life sentence in 2003 after he pleaded guilty to trying to blow up an aircraft.

But Republican Senator Kelly Ayotte warned al Qaeda might send others to attack the United States if it thought that suspects captured on U.S. soil would not go into military custody.

“In our country we need the authority in the first instance to hold those individuals in military custody,” she said.

Otherwise, “we’re laying out a welcome mat, to say, that if you make it to America, you won’t be held in military custody,” Ayotte said.

Jeh Johnson, Defense Department general counsel, said on Thursday the detainee provisions would actually hinder the pursuit of terrorism suspects.

“Al Qaeda is a more decentralized organization than it was 10 years ago and that the threat will continue to evolve in ways that we can’t entirely anticipate … we urge our friends in Congress to not take away our counterterrorism options,” Johnson said at an American Bar Association conference.